from the say-what-now? dept

In a horrifyingly bad ruling, the 6th Circuit appeals court has said that the owner of a prepaid phone has no 4th Amendment rights in protecting his location info from law enforcement. There have been a number of cases touching on this subject, with a few different rulings back and forth, including more than a few in the federal courts that argue tracking someone's location isn't a 4th Amendment violation. But, even if you grant that, this particular ruling is egregiously bad and poorly argued. The EFF highlights some of the more brain-numbing aspects of the ruling:

In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because "if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Otherwise, "technology would help criminals but not the police." In other words, because cell phones can be used to commit crimes, there can't be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court's conclusion really did boil down to this shallow understanding of the law.

Yes, you read that right. Basically, if you've broken the law, according to the court, you have no 4th Amendment rights. And, then it goes further, by basically noting, because anyone might be a criminal, we might as well remove all of their 4th Amendment rights as well, because doing so might help the police. Of course, this goes against the very basis of the 4th Amendment.

The story involves police tracking a guy accused of being a drug runner, via the GPS in his pre-paid phone, without getting a warrant. The guy, Melvin Skinner, pointed out that this violated his 4th Amendment rights, but, as noted above, the court disagreed.

The court proceeds through a series of lazy and underdeveloped analogies:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

That's not all. The court seems equally confused about other cases, and both the EFF and Sanchez's link above details other mistakes concerning other case law. This isn't just a case of people having different interpretations. This seems like a clear case of a court not really bothering much with the details or the case law and just seeing one thing: this guy was a criminal and the GPS info was useful in finding him, therefore it must be okay. This is a very troubling precedent to have on the books no matter how you look at it.

And it will impact many Americans. While the focus in the ruling is on the "but he's a criminal!!!!" aspect, it applies across the board to pre-paid mobile phone users (well, at least those covered by the 6th Circuit). And that's about a quarter of mobile phone subscriptions. As the EFF put it, in an effort to make sure criminals get no privacy location privacy rights, the court has killed such rights for everyone else as well -- which is exactly the opposite of how our system is supposed to work.

Logic Loop

If followed to it's insane conclusion, you have no rights.

That's right up there with the 'greater good' supersedes the 'rights of the few'. By that logic, because you are only one person, then the mass-rights of everybody can logically be used to suppress your rights.

Sadly, the truth of this is the 'greater good' excuse is already being employed to suppress your rights.

Appeal coming in 3 ... 2 ... 1 ...

Re: Appeal coming in 3 ... 2 ... 1 ...

Hopefully the judges who made this braindead decision will be put in front of the bar and disbarred as well. I cannot see this as anything more than judges who are out of control and think that they can make the law say anything they wish it to.

Re: Appeal coming in 3 ... 2 ... 1 ...

Why should there be an appeal? This ruling is definitive in the sixth circuit, because it is the appeals court making the ruling. If there is no opposite ruling in any of the other circuits, then there is no circuit split and the supremes will not take the case. It is entirely possible that there could be confirmatory rulings by appeals courts in circuits other than the sixth. In that case, this ruling gets closer to being settled law.

If you carry a mobile phone, you can be tracked and bugged at any time. Privacy? Get over it. If you do not like being tracked and bugged, then do not carry a mobile phone.

Re:

Don't forget Kyllo. It's easy to forget about it, but it's very important in this case. In Kyllo, the use of thermal imaging was found to constitute a search precisely because the general public doesn't typically have access to thermal imaging equipment. Likewise, the general public doesn't have access to equipment that can receive GSM/CDMA signals that aren't specifically intended for the recipient.

next up

A Reasonable Expectation of Privacy

How do you define a "reasonable expectation of privacy"?

In my opinion, if I as a private citizen cannot "do something" to another citizen, then that citizen should expect "that something" to be reasonably private. As a private citizen, I cannot go to the cell phone company and get your location records. Therefore, I expect that such records are reasonably private, and should require a warrant.

If it were possible to extract this location information from the public airwaves as a private citizen, then I would agree that there is no reasonable expectation of privacy. For example, any transmission performed over an unencrypted wireless network such as wifi can be intercepted with tools commonly available to a private citizen. In fact, Google surreptitiously recorded and was subsequently fined for doing just that. But cell phone signals are encrypted so that they cannot be eavesdropped by third parties, with the intention of providing the caller with a reasonable expectation of privacy.

I also take exception to the statement from Judge Rogers, who said "The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools." It is disappointing to see a Judge rely on a straw man fallacy to justify his ruling; a reasonable person does not expect the tools in question to be untrackable, only that a warrant be issued if the tool cannot be reasonably tracked by private citizens.

Yes, the defendant was caught with a half-ton of illegal drugs, but I would be surprised if the police did not have enough probable cause to get a warrant for tracking. Had they done that, the defendant would be serving time right now instead of appealing his conviction based on a technicality.

Re: A Reasonable Expectation of Privacy

This case goes beyond mere records by the phone company. The police had to get a court order to actively ping the phone, essentially forcing the phone to report its location to a third party without the owner ever knowingly exposing their location. It's not like he made a call and in so doing exposed his number and the number he called to the phone company.

On top of that, they didn't have any idea who he was when they went looking for him. No real name to go on. So they couldn't get a warrant for him. The court hand-waves around that by suggesting that surely if they'd followed due process they would have found his identity and location eventually so what does it matter if they used a short-cut to get there. Which is obviously insane.

Re: Re: A Reasonable Expectation of Privacy

Re: Re: Re: A Reasonable Expectation of Privacy

How would you get a search warrant when all you have is the cell phone information and an alias? What would it cover? I'm sure you can get one without a name but that's not the only detail they didn't have. I'm sure they would have found more details had they gone looking for them but the court seems to think it's ok for them to just take a short-cut instead.

Re: Re: Re: Re: A Reasonable Expectation of Privacy

Being an engineer, I'm not savvy with the requirements for a warrant. But I would imagine that if they had probable cause to believe a certain phone would be in proximity to the commission of a crime, they could get a search warrant for just the phone information.

Re: Re: Re: Re: Re: Re: Re: A Reasonable Expectation of Privacy

All squares are rectangles, but not all rectangles all squares.

All search warrants are court orders, but not all court orders are search warrants.

Can you cite the page number of the judicial opinion that states it was specifically a search warrant for the cell phone information? Because Julian Sanchez explicitly states that it the court order given to the DEA was not a search warrant.

Re: Re: Re: Re: Re: Re: Re: Re: A Reasonable Expectation of Privacy

Julian Sanchez also very disingenuously suggested that police didn't have to establish cause to get the order.

All rectangles that have four equal sides are squares. They had to establish cause to get what they got. They didn't go further than what was ordered, good cause being shown - unless, which I've conceded already, the nature of the signal was such that they had to break a privacy barrier beyond what was authorized in order to ping and locate the phone. Others have suggested that is exactly the case. It doesn't make sense to me, but I'm open to learning more about it.

"Can you cite the page number of the judicial opinion that states it was specifically a search warrant for the cell phone information?" No, I also can't show you in todays newspaper that Abe Lincoln was our 16th president. I can show you photographic evidence that he killed vampires, though.

Re: Re: Re: Re: A Reasonable Expectation of Privacy

Re: Re: Re: Re: A Reasonable Expectation of Privacy

The name requirement appears to apply only to the seizure aspect. That line standing by itself does not imply that a name is absolutely necessary to get a search warrant, only that the place to be search is described.

Re: Re: Re: Re: A Reasonable Expectation of Privacy

The police didn't search a person based upon that order. They searched the phone provider's information on a phone account where good cause was established to show that the phone was probably used in the commission of a crime.

They didn't listen to the guy's private conversations. They traced the signal of the phone.

The only real issues remaining here are (1)whether the process used to track down the phone breaks a privacy barrier that the user had good reason to believe should be private

The man himself wasn't what was searched. The private conversations over that phone weren't tapped to find it. The court authorized them to get the GPS info on the phone, based on good cause, and they did. After they found the phone, for which due process took placen, then they had to take other steps to establish further cause to make further search and arrest.

GPS vs. cell phone signal?

I'm curious. I've looked at a few articles on this subject since last night, and I haven't seen anything that clarified exactly what information the police obtained.

The opinion states that there is no expectation of privacy from a signal emitted by a phone procured voluntary. However, a GPS signal is one way, from the satellite to the receiver. Cell phones do not emit GPS signals.

Cell phones do emit CDMA or GSM signals. However, both of these signals are encrypted.

So did law enforcement track him by triangulating his position based on what cell phone towers his phone pinged, or did they get the phone company to send a message to the drug runner's phone that told it to cough up its current GPS coordinates? I think it's an interesting question as to whether the phone emitted those signals only at the behest of the phone company.

Not Mike's fault

Honestly, reading the ruling, it really seems like the logic being used is really sound and probably not a 4th Amendment Violation.

I can't say that Mike and others are being unfair, because the 6th badly confounds the issues in it's argument, but I believe the intended argument--if I can really pretend to pick it out of the fog--is actually solid. Point in interest:

"if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."

The reasoning here is cut far too short. If you read the rest of the ruling, what you realize is that PC was established and a court order given to release the device-specific information that allowed the police to track a publicly broadcast signal.

What the court's statement above means is that when police then tracked that publicly broadcast signal with no further order from the court does not represent a violation of the 4th Amendment because they took the right steps to get what they got and did not need to take further steps to use it.

It's basically the same reasoning as why it should be totally okay to use an open wifi hotspot. The signal is publicly available and broadcasting an open connection. Whether or not the user intends it to be broadcast does not come to bear on saying an outside user is breaking into their network. Albeit unwittingly, they made it public.

What was private was was obtained by due process, and police did not need further process to track a signal that was NOT private.

Again, the judge's wording is, I agree with Mike, horrific, but I don't think the actual argument is lost. It's not really saying that it's okay to xxx because he's a criminal. It's saying it--very specifically meaning tracking the signal--is okay because it's already being made public.

So, the analogies, try to express this too, the scent and the license plate representing what is already public, but no they don't overcome the lousy wording that does unfortunately connote a really bad view of due process.

Re: Not Mike's fault

Re: Not Mike's fault

The reasoning here is cut far too short. If you read the rest of the ruling, what you realize is that PC was established and a court order given to release the device-specific information that allowed the police to track a publicly broadcast signal.

Wrong. PC was not established. They skirted around establishing PC by getting a court order to go to the cell phone company instead of getting an actual warrant. And let's be clear, that's what's really being argued here. Not that the police have no recourse what-so-ever but that such a search would require a warrant, that's all.

Furthermore it's absolutely NOT a publicly broadcast signal. There is no public signal from the phone to track its location. They got a court order to actively ping the phone from the cell company so the phone would then reveal its location via a signal. It's not like an open wifi hotspot because there is no constant signal. It's not publicly available and it's not broadcasting an open connection. Even if it was Kyllo v US implies that that's not enough. Thermal signals coming from a house are 'broadcasting in the open' but they're still protected because there's a reasonable expectation that there's no one with thermal imaging outside your windows.

Also wrong on unwittingly making something public, as was the court. Katz v. United States: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” So what is covered by the 4th amendment, according to the precedent set in Katz by the supreme court, absolutely does turn on what the user intends to knowingly expose to the public.

Re: Re: Not Mike's fault

"Wrong. PC was not established."
You're suggesting the court just up and gave them an order. They have to actually apply for that order and show cause why they should have it. In this case it would have meant a chain of probable cause sufficient to indicate that the phone itself(?of unknown ownership) was probably actively being used to commit a crime. That PC chain is actually clearly spelled out in the order above.

"Furthermore it's absolutely NOT a publicly broadcast signal." That is a really valid question that's not really well addressed by the order. The court asserts that it is public and broadcast. If that's wrong, then there's a huge hole.

"Also wrong on unwittingly making something public" Well no, that is decidedly situational. That's why the ruling in Katz says "may" rather than shall, which means your assertion that it "absolutely does turn on what the user intends to knowingly expose" is wrong. It possibly turns on it, but possibly not.

Re: Re: Re: Not Mike's fault

"You're suggesting the court just up and gave them an order. They have to actually apply for that order and show cause why they should have it. In this case it would have meant a chain of probable cause sufficient to indicate that the phone itself(?of unknown ownership) was probably actively being used to commit a crime. That PC chain is actually clearly spelled out in the order above."

Court orders don't have the same burden of PC that warrants do. They're not the same thing and if they had enough for a warrant that's what they should have sought.

""Also wrong on unwittingly making something public" Well no, that is decidedly situational. That's why the ruling in Katz says "may" rather than shall, which means your assertion that it "absolutely does turn on what the user intends to knowingly expose" is wrong. It possibly turns on it, but possibly not."

First of all, that was not your original assertion at all, that 'it depends.' Second, what you're saying does contradict what I said at all.

I did some more reading after the fact on this and learned of the other type of order where there is a significantly lower standard of proof.

Apparently this has been an ongoing issue with GPS tracking.

The lower standard does not require probable cause, but a lower standard that, yikes, is basically based on the relevance to the case. Sounds great if we're talking about home basic info on the device itself, not so great when we're talking about an encrypted GPS key (did some further reading on that, too) that serves as an intentionl privacy barrier.

I still think the order lays out a history that sounds like police would have had plenty to go on for probable cause to get an actual warrant in this case. BUT that's not good enough. They really needed to go and DO that.

I just can't see that giving over a private encryption key that let's people track a person shouldn't require probable cause AND the due process of showing that in getting a warrant.

Please pardon the thick-headed arrogance. No excuse there, really. Have a nice day.

Re: Not Mike's fault

I disagree with you.

First, a GPS signal is transmitted one-way only, from the satellite to the receiver. The phone does not give off a GPS signal. The phone company has to ping the phone and tell it to relay the GPS information back to the phone company; or the phone company has to triangulate the position using the towers that the phone is pinging itself.

Second, the GSM/CDMA cell phone signal being emitted by the phone is hardly a publicly broadcast signal akin to an "open wifi hotspot". Notice your careful use of the word "open" - by which you mean, not encrypted. GSM and CDMA transmissions are both encrypted.

Third, there are tools commonly available to the public that can be used for tracking scents and reading license plates. In contrast, there are no commonly available tools to the public that can be used for intercepting and decrypting GSM or CDMA signals.

Re: Re: Not Mike's fault

You're not disagreeing with me. I didn't assert the points that you're arguing against. I actually agree that it's a hugely valid question as to how public the signal really is.

I just pointed out that if it is public like the court says it is, then there's a really sound argument here that the police followed the book--that completely aside from how badly they constructed it.

I would point out though that if police got the the court to authorize them to decrypt a wifi signal, then it's hard to argue that they didn't have authorization to follow up by decrypting the signal.

Re: Re: Re: Not Mike's fault

Yes, I am disagreeing with you. You said, "it really seems like the logic being used is really sound and probably not a 4th Amendment Violation." And I disagree with that so vehemently that I am somewhat surprised I have not degenerated into vitriolic rhetoric yet.

You also did assert the points I'm arguing against. Nowhere did you say "it's a question" - everything in your post explicitly states your belief that the signal is purely public and therefore does not deserve Fourth amendment protection. You even compared it to open wifi, and I explicitly argue against that comparison. My second point was that it's encrypted, unlike open wifi. My third point was that we generally do not have tools that can receive such signals, unlike open wifi (which can be easily eavesdropped using a modern laptop)

Finally, I would hope that the police need a search warrant to decrypt an encrypted wifi signal. The use of encryption shows a conscious effort by the owner of the signal to prevent the contents of said signal from being exposed. A court order should not be sufficient in such a case.

Re: Re: Re: Re: Not Mike's fault

"And I disagree with that so vehemently that I am somewhat surprised I have not degenerated into vitriolic rhetoric yet." Well, you had not made that clear yet. But I agree, you're getting pretty irrational.

As for whether it was a public signal or not, the reason I didn't say "It's a question," is because it wasn't a question. I assumed it was public because neither the article nor anyone else had raised the question.

It seems no one in the case did. If it was raised, then normally we'd see that decision laid out in the findings. If the prosecution argued that it was and no one in the case raised the question, then the court would be right to rule accordingly. That's what an adversarial system is. You have to argue your case for the court to rule on it.

When I said the argument seems really sound, and then restated what I thought that argument was, that's what I was doing. Restating, and agreeing with (incompetently stupid ambiguities notwithstanding) with what I had before me.

I've already conceded the point that it may not be a public signal. I don't know how many more ways to do this. I don't know enough to say one way or the other. It's a valid question, which bears considering. What the hell else do you want me to say? Some people say there's a woman to blame, but I know it could be my fault? That you should have been the guy's attorney? Yes, you would have heroically saved the drug dealer and all of our freedomses. I agree. I agree. I agree. You're the best. STFU.

As for warrant vs. order: A search warrant is a court order issued by a magistrate, judge, or Supreme Court officials to search a person or a location.

In this case they had an order from a magistrate to search for and get all of the information that they searched for and got from the phone provider. They used that to track the phone, for which PC was established as being used for a crime--that's what they had to do to get the order (read warrant).

They used the information intended to help them find the phone to...find the phone. When they got there, they didn't bust in with riot gear and say "Gimme the phone and show me your drugs!!!" They let the dogs do their thing, further PC was established, then they searched.

It's all restated there in the ruling (up there^^), but like I said before, it's not well extrapolated into the actual reasons for the decisions and where it does try to extrapolate it also seems to imply that it's safe to assume a guy is a criminal before searching. That's not really what was meant, and a careful read does show this, but it's still a bad thing. Other judges might look to this decision and rule with less scrutiny than they really ought to and make even worse rulings.

Re: Re: Re: Re: Re: Not Mike's fault

I would like to think I've been pretty rational so far (I certainly never told you to STFU, nor did I ever imply that you are an apologist for criminals)

You only "conceded" (i.e. changed your mind) that it may not be a public signal after someone said "it's not a public signal." To change your belief after the fact to "we have always been in agreement" is disingenuous at best, because we did not agree when you made your first post.

Besides that, you still haven't taken into consideration the argument regarding Kyllo and how private citizens do not typically have equipment that can access these signals. I can only interpret your lack of rebuttal on this subject as an affirmation that we still do not agree on this particular facet of the case.

I have also not seen any mention that they were able to track the suspect's phone without the cooperation of the network operator (particularly difficult given the encryption that cell phones use to communicate with the network). So you can't just say they used the phone company's info to then track the signal on their own as if it were a beacon.

Finally, I have not seen anyone claim that the DEA got a search warrant for the phone information. If that is true, I have no qualms about this at all. However, it appears that the "court order" that the DEA got was not a search warrant.

Re: Re: Not Mike's fault

Re: Not Mike's fault

I think that I agree with you.

If only the judge has said it that way instead of bringing in such insanity as asserting that it must be allowable because otherwise it only help criminals or it's just like physically watching the vehicle.

Re: Re: Not Mike's fault

Even with Jason's laudable attempt to rewrite the Judge's opinion with better wording, the behavior of the DEA in this case still constitutes a Fourth amendment violation.

For reference, please see Justice Scalia's opinion in Kyllo. Just because the thermal signal emanating from a house is publicly accessible doesn't mean that the use of thermal imaging tools is not a search under the Fourth amendment. The reason being that private citizens do not typically have thermal imaging equipment.

In the same vein, private citizens do not typically have equipment that can receive raw GSM/CDMA signals. Even if they did, private citizens do not have the commonly have the ability to spoof a signal to the cell phone that causes it to cough up its GPS coordinates; only the owner of the phone network has that power.

This also totally ignores the fact that GSM/CDMA signals are encrypted, and that decrypting them without a warrant violates at least one law.

Re: Not Mike's fault

"if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."

Well technically the car, truck or van that the drugs were in was the transport mechanism - not the phone. And as others have pointed out phone signals are not public like a license plate or the color of a car. This is a horrible ruling and it gives the police, at least in the 6th district, just that much more leeway in violating other civil rights.

Law enforcement has been able to track your physical location via your cell phone ever since the tragic events of September 11th. Matter of fact, cell phone manufacturers are obligated, under Federal law, to include certain 'chips' so they can track you, as long as your cell phone is turned on.

This isn't a matter where law enforcement is listing in, reading or monitoring your actual phone calls or emails, they are simply following a signal that is given off by your cell phone, a type of GPS locator, as long as your cell phone is turned on.

I find it distasteful that some would find this unconstitutional, and the court was correct in ruling the way it did. If you don't want to be tracked by law enforcement, keep your cell phone turned off. If you're involved in illegal activities, then why are you using a trackable cell phone in the first place?

Re:

Re:

So, basically, you think that if someone used a car to kill a bunch of people, they would be good in putting a chip in cars that tracks where they are at all times?

Let's get real here: You are a chicken livered little shit who is scared of his own damned shadow.

Terrorists have managed to kill on American soil a grand total of 5K people in 100 years.... that is less than 1/20th of the number killed by car accidents each year.

No, not a big danger and not something that we have to give up our rights about.

That law mandating those chips should be THROWN OUT. It's unconstitutional that they have a way to monitor everyone at all times without a warrant.

If they think that someone is a terrorist? Fine.... they can get a fucking warrant to monitor. If imminent danger to human life is an issue, they can even get a warrant after the fact in our legal system.

Re:

You employ the same strawman as Judge Rogers. No one is saying that it's unconstitutional to track people's cell phones. Just that it's unconstitutional without a search warrant based upon probable cause.

Also, the signal is not just being "given off" by your cell phone. Specifically, it requires tools that are not commonly available to the public in order to even receive the signals. And that ignores the fact that they're encrypted, which means you would need the assistance of the private business running the phone network in order to even understand what the signals are.

Re:

This isn't a matter where law enforcement is listing in, reading or monitoring your actual phone calls or emails, they are simply following a signal that is given off by your cell phone, a type of GPS locator, as long as your cell phone is turned on.

I fail to see how that distinction is meaningful at all.

If you don't want to be tracked by law enforcement, keep your cell phone turned off.

And again we see the argument that if you don't want to be spied upon, you must stop taking part in society.

Re:

So, if you have nothing to hide, you have nothing to fear. Track everyone and everything. Now, tell me everywhere you've ever been and everyone you've ever met. I'll need your tax returns for the past 17 years, list of employers, political affiliation, all family members and their associates. Otherwise, you are another terrorist.

Re:

I find it distasteful that you don't think this is unconstitutional. You probably think that it's OK for the police to stop you from filming them or that it's OK for the NSA to track every American's phone calls and emails too.

Re:

these laws that remove the rights of people are fine when those that make those rules and uphold those laws are not affected. as soon as something happens to them or a family member or friend, it will be a different story. they will then perhaps see the stupidity of how they have ruled. unless there is a successful appeal, they could find they have committed their own son or daughter to the hands of people that have absolutely no respect for anyone or the law. that could be an eye opener for them!

Re:

Slippery Slope

Slippery slope is regarded as faulty logic because it assumes a number of future decisions which cannot be reliably predicted. Slippery slope arguments have a heavy emotional impact because they tend to assume that any choice taken will lead toward the worst possible choice.

In this example, the slippery slope in question is the idea that if the government has the power to screw us over then it will inevitably use it.

However, if the government doesn't have the power to overwhelm any particular individual, then they can't really do their job.

Also, the slippery slope goes two ways.

One perspective sees the progression moving further and further into oppression and tyranny, and the other slope falls into anarchy and chaos.

We Americans tend to distrust authority to an absurd level.

This is an example in my opinion. I see know particular problem with this ruling. After all, 4th amendment is NOT about Privacy. Privacy is not a constitutional right. Search and Seizure is a separate issue.

Re: Slippery Slope

Slippery slope is only a fallacy if one cannot demonstrate the process by which the ultimate result is achieved. Having long since demonstrated that process when it comes to government it's not at all a fallacy to say that if the government has the power to screw us over then it will inevitably use it.

Also you're using the same straw man as the judge. Absolutely no one is saying the police don't have the power to go to a cell phone company, ping the phone, and track the signal. What they're saying is they have to follow due process to exercise that power. What they're saying is that a court order shouldn't be enough on its own, they need a search warrant with its more stringent requirements.

You don't see a particular problem with this ruling because, as you've demonstrated in your post, you don't understand the arguments for or against it or what's really at stake. That's made amply clear by your implication it's about privacy when it's a 4th amendment case through and through.

Re: Slippery Slope

After all, 4th amendment is NOT about Privacy. Privacy is not a constitutional right

Perhaps you should look up the 2007 ruling from the Supreme Court, titled United States v. Ziegler. In it, the Court found that an employee has Fourth amendment privacy protections regarding the contents of his work computer (ultimately, the employer is able to waive those rights as the owner the hardware itself).

Even better: December 14, 2010, in United States v. Warshak, none other than the Sixth Circuit ruled that the government had violated Warshak's fourth amendment rights because he had a reasonable expectation of privacy in his emails, and that a warrant with probable cause is required to obtain those emails from the ISP.

Regardless of these precedents, I would also like to see your argument that finding and tracking someone via cell phone is not a search.

Re: Slippery Slope

We Americans tend to distrust authority to an absurd level.

I don't know about that. I distrust authority because authority has consistently demonstrated that it cannot be trusted. The absurdity is not my distrust, but that there is good reason for my distrust.

Re: Slippery Slope

expect government has proven time and again that it is a slippery slope; the fact that governments grow always, until they are destroyed or collapse under their own weight, has quite a few data points but as far as i know has no exceptions

Re: Slippery Slope

Oh but you have a ton of reasons (including constant violations to your Constitution) to distrust the authorities.

The current Constitutional slippery slope you are going down started in 2001 with the Patriot Act, the first law that effectively violated the Constitution with its very existence as law there are other absurds but the last one is NDAA.

This is an example in my opinion. I see know particular problem with this ruling. After all, 4th amendment is NOT about Privacy. Privacy is not a constitutional right. Search and Seizure is a separate issue.

The private jails are demanding more inmates, and the politicians they fund are happy to oblige. More pointless laws, and more power to arbitrarily enforce them against criminals, suspected criminals, and potential criminals. The police state continues to expand.

At this rate they may as well start manufacturing TVs without power buttons and telling us we've always been at war with Eastasia.

I've heard this before, and it never made sense. How is prohibiting the state from searching and seizing my person, home, papers, and effects without probable cause NOT a demand for them to respect my privacy?

Can someone please explain briefly how this tracking works?
GPS devices only receive GPS signals to calculate position, they don't broadcast anything or require a connection with any kind of server, so how does this work?

Re:

I agree that there is a dearth of technical analysis going on. From what I have gathered, the cell phone company sent a signal to the drug courier's phone using GSM/CDMA/whatever signaling standard the cell phone uses ("ping"). The phone then sampled its GPS data, and relayed that data back over GSM/CDMA to the phone company.

This tracking could not have been achieved without the cooperation of the network operator.

Re:

I would actually be quite surprised if the Supreme Court would uphold this, given the precedent that was set in Kyllo. And to top it off, the majority opinion in Kyllo was written by none other than Justice Scalia, so the allegation that the Court is stacked with conservatives would have no bearing on the outcome.

It is pretty simple: If you are going to carry a device the broadcasts your location on a regular basis (if even by only activating itself on various cell towers)you should expect no privacy on this information. It's not hard for a court to see this very basic and simple logic.

No, they are not listening to your calls. No, they are not tracking you with a gps unit that they installed on your car. They are tracking you with a device that you willingly carry with you, and that could have very easily been disabled if you wanted. It's your choice.

The same results would have been obtained by having undercover police tracking the guy. It's not really that big of a deal. The level of PC required shouldn't be any higher.

Re:

They made it ping. It's like a passive RF tag. It does nothing without being hit with power. What they did was sort of like attaching a siren to the guy that he couldn't hear. Yeah, he's most likely a bad guy, there are tons of those about, but you seem to think that the ends justify the means.

Re:

In Kyllo, Justice Scalia said that even though your house "broadcasts" your heat signature into the public airwaves, you still have a reasonable expectation of privacy in your thermal signature because private citizens do not typically have access to thermal imaging equipment.

Likewise, private citizens do not typically have access to equipment that can receive and understand GSM and CDMA signals emitted from a cell phone.

Additionally, even though the signal is broadcast, it is encrypted. Do you have a reasonable expectation of privacy when using WPA2 to communicate wirelessly with your router?

Furthermore, the method in question did not involve the phone broadcasting its location on a regular basis. It involved the phone company instigating the drug courier's phone into revealing that information. The phone would not have revealed it without the phone company issuing the command to it.

It is also impossible for an undercover officer to track the guy, being that the DEA had no idea who he was or even where he was at all. The only information they had was the phone number.

Finally, do you think a private citizen can go up to the phone company and ask them for the location info of a random cell phone number? If the answer to that question is no, then why would you believe there is no reasonable expectation of privacy?

Re: Re:

"In Kyllo, Justice Scalia said that even though your house "broadcasts" your heat signature into the public airwaves, you still have a reasonable expectation of privacy in your thermal signature because private citizens do not typically have access to thermal imaging equipment."

Yet, if you walk past a drug sniffing dog at the airport, and he smells the kilo of coke you have in your bag, you can be arrested. Did the dog trigger the event?

"Additionally, even though the signal is broadcast, it is encrypted. Do you have a reasonable expectation of privacy when using WPA2 to communicate wirelessly with your router?"

Yes, but the presence of the signal (and any unencrypted parts broadcast) could be received outside the property and dealt with. As an example, you might be able to determine the presence of a given MAC address (laptop or phone, example). It's not clear that the unencrypted parts are really protected in any way.

Here's another example: Let's say that police park near a suspect's home, and set up a series of open wi-fi connections. As the guy drives by, his wi-fi enabled laptop or cell phone queries those open wi-fi sets. Now, did the police FORCE him to do anything?

"Finally, do you think a private citizen can go up to the phone company and ask them for the location info of a random cell phone number? If the answer to that question is no, then why would you believe there is no reasonable expectation of privacy?"

A private citizen does not have any reason to ask, no compelling reason to know. Police do have compelling reasons to know, and obtain information which is general in nature and does not specifically divulge any communications with any other parties. The only communication is with the cell phone company, saying "my phone is here".

If he didn't want to be tracked, he probably should have turned off the phone.

Put it another way: with some reasonable suspicions, the police could very likely get a warrant for all of the location information for however long back it was tracked, and could probably just as easily obtain a wiretap. Don't you think that the level of suspicions for a wiretap, which divulges personal communications, should be higher than just knowing what 3 or 4 square mile area a phone is located in?

Re: Re: Re:

Yet, if you walk past a drug sniffing dog at the airport, and he smells the kilo of coke you have in your bag, you can be arrested. Did the dog trigger the event?

Failed analogy. The dog hints on the evidence that there's coke on your bag. Then they proceed to check it. And they will not go into your bank account, cellphone data, private notebook or any other of privacy invasion. They also don't keep tracking you everywhere you are in the airport just because you might have drugs with you. Unless there's an investigation undergoing on you and they have warrants.

It has been like that for ages. But I'm sure you don't mind the Government following you and wiretapping your cellphone conversations since the signal is public anyway, right?

Re: Re: Re:

Yet, if you walk past a drug sniffing dog at the airport, and he smells the kilo of coke you have in your bag, you can be arrested. Did the dog trigger the event?

A private citizen has easy access to dogs. Dogs can be trained to smell drugs, pretty much anyone can do it. I don't see how this has any bearing on the Kyllo ruling.

It makes sense that there is no reasonable expectation of privacy in your scent. It's certainly not encrypted. And besides, airports are a terrible example because so many liberties are already curtailed there.

It's not clear that the unencrypted parts are really protected in any way.

I agree that the unencrypted parts are likely unprotected.

Here's another example: Let's say that police park near a suspect's home, and set up a series of open wi-fi connections. As the guy drives by, his wi-fi enabled laptop or cell phone queries those open wi-fi sets

You betray a misunderstanding of technology here. Laptops and cell phones do not "query" open wifi. A typical wifi chip in promiscuous mode (that's the technical term for "searching for an access point") does not transmit anything, it merely listens to the beacons being broadcast by access points. Only when it goes to establish a connection to the access point does the device begin to transmit.

A private citizen does not have any reason to ask, no compelling reason to know. Police do have compelling reasons to know, and obtain information which is general in nature and does not specifically divulge any communications with any other parties. The only communication is with the cell phone company, saying "my phone is here".

If he didn't want to be tracked, he probably should have turned off the phone. [...] Don't you think that the level of suspicions for a wiretap, which divulges personal communications, should be higher than just knowing what 3 or 4 square mile area a phone is located in?

Who are you to say that a private citizen does not have a compelling reason to ask or know? The fact is that you don't know. And herein lies my ultimate point; if a private citizen is not capable of getting access to this information, the police shouldn't have access without a warrant. Certainly I can ask the phone company for my billing information, or the billing information of my spouse (thus having access to the numbers called), but I find it hard to believe they would let me have access to location records of myself or my spouse.

And in fact, you once again betray your misunderstanding of this case. They weren't using cell phone tower pings to triangulate location (which, in my opinion, still constitutes a search under the Fourth amendment). The phone company told the phone to cough up its GPS coordinates, without any action on the part of Bigfoot. The phone then transmitted a message to the phone company, and the contents of this message - Bigfoot's GPS coordinates - were then divulged law enforcement without a search warrant. This was not merely a "3 or 4 square mile area", this was full GPS resolution down to meters.

If the police wanted to find him by using the location of his cell phone, they probably should have gotten a search warrant. Finding someone's personal location through the use of technology that requires the participation of a private entity should constitute a search just as invasive as monitoring the contents of their correspondence.

If you find that person through other means, by tracking them, it's no different than being within earshot and listening in, which also doesn't require a warrant. I am drawn once again back to Kyllo; in that case, the warrantless use of thermal imaging equipment was found unconstitutional. Wouldn't you consider the contents of your phone calls to require a higher standard than merely looking at your house with an infrared camera? And yet the use of thermal imaging equipment was found to be a search under the Fourth amendment.

Wireless Surveillance Act of 2012

A new bill (hopefully) reconciles Fourth Amendment protections and 21st-century search and seizure.

A month ago, we learned that more (and maybe many, many more) than 1.3 million people's cell phone data were handed over to US law enforcement agencies in 2011 alone. Text messages, caller locations, and records of who called whom and for how long had all been shared without a judges' approval -- because, according to current law, no approval is needed.

Last week, the Congressman who helped reveal how rampant and unregulated that sharing is introduced legislation to start restraining it. Called the "Wireless Surveillance Act of 2012," the new bill, in the words of its Massachusetts's Edward Markey, attempts to "update the 4th amendment for the 21st century."

Re:

people in power respect the promises they make in order to gain power now?

the bill of rights should be looked at like campaign promises from current politics "oh hey, if u let us the founding fathers(bunch of rich white guys) start a new government we promise to not be evil like the king we literally fought a war to get away from a few years ago, while fixing all ur problems by spreading magic legal dust EVERYWHERE"

The 6th Circuit court of appeals has become way to abstract.
As this ruling implys, "law enforcement" means any employee of a policing agency who has a badge. A warrant implys the force of the government. Criminals with badges like Drew Peterson can mine or sell this data to private investigating services for profit. As long as they keep quiet about it there will be no political pressure to override this ruling through legislative action. This extra income could really help an officer if he has to pay child support.

GPS Technology

This type of thing has been boiling my blood for years. I think our court system cherry picks the type of technology they want to use to force their hand in court. By this I mean the courts won't let a party in a case show emails or Internet registration information to use against someone else unless they are authenticated.

Then the court throws this evidence out because they don't have the technology to validate certain types of information that can solve a case or prove that someone is lying.

But, on the other hand, our courts will go to the ends of the earth to bend THEIR laws to make an email, voice mail, text message, radar detector, dash cam etc. convict a citizen. They add their little side note that they have the technology to find you guilty based on the "tools" they have.

BUT God forbid you try and introduce any technology in your OWN case that could prove your innocence, or a cheating spouse, or even prove you don't owe a debt, the courts say "no way!"

Our entire Judicial System, 911 system, public safety system and other public entities are so far behind with technology that people get screwed in the courtroom every day.

It's frustrating to see how our Court System scrambles to try and stay in step with the lightning speed in which technology has evolved. Think about it from a legal standpoint. Since the Internet, cell phones and wireless technology of all kinds, the "lawmakers" are drowning in endless laws that need to be written into the books.

I doubt that lawmakers will even scratch the surface with regard to writing case law and/or rules that can keep up with the technology wave.

I'm sick and tired to watching people get screwed in life because a Judge won't let something into the courtroom yet, they will move mountains to use it against you.